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HomeMy WebLinkAbout04-5250RICHARD J. BIELICKI and JANET E. BIELICKI Petitioners V. CUMBERLAND COUNTY ASSESSMENT : OFFICE Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04- .S,) 5s a CIVIL TERM TAX ASSESSMENT APPEAL PETITION FOR REVIEW AND NOW this 20`s day of October, 2004, comes Petitioners Richard J. Bielicki and Janet E. Bielicki, and Petitions that this Honorable Court pursuant to the Fiscal Code to review the determination of the County Assessment Office as to the appropriate value of certain real estate for taxing purposes based on the following: Petition for Review (In the Nature of an Appeal) Tax Parcel Number 01-21-0271-289 1. This court has jurisdiction over this matter pursuant to the Fiscal Code 72 P.S. Section 5020-518.1 and the Judicial Code 42 Pa. C.S. Section 933. 2. Petitioners are adult citizens currently residing at 2703 Logan Street, Camp Hill, Cumberland County, Pennsylvania 17011. 3. At all times relevant to this petition, Petitioners are owners of real estate located at 2703 Logan Street, Camp Hill, Cumberland County, PA. 4. The property in question is designated as Parcel Number 01-21-0271-289 by the Cumberland County Assessment Office, and contains 0.26 acres and a residence structure. 5. In 2004 the assessment office increased the value of the parcel in question, Parcel Number 01-21-0271-289, from $228,540.00 (as assessed during the County wide reassessment of all County properties) to $307,440.00. 6. Petitioners appealed this reassessment to the County Board of Assessment Appeals arguing that: the new value was not the: value of the parcel; the values of like properties in petitioners neighborhood with the same zoning had been reassessed by the county assessment office at an increase in value (from the County wide reassessment during the year 2000 to the year 2004) at an average of 4% while petitioners property was reassessed in value (from the same County wide reassessment during the year 2000 to the year 2004) at an increase in value of 34.5%; that the Gross Living Area calculated by the assessors office is 3,512 square feet, while the actual Gross Living Area is 2,921 square feet; the 2004 reassessment disregards, negates and contradicts the equalizing effects to equal taxation among property owners resulting from the costly County wide reassessment done during; the year 2000; the assessment violated the Pennsylvania Constitution relating to equal taxation among property owners. 7. On September 28, 2004, following a hearing, the Board of Assessment Appeals decreased the assessment on Parcel Number 01-21-0271-289 from $307,440.00 to $260,540.00, for a 14% increase applied to petitioners property while like properties in petitioners neighborhood were assessed at an average 4% increase. 8. Petitioners appeal this determination as the value assessed in inappropriate and unconstitutional. WHEREFORE Petitioners pray this Honorable Court set a hearing date to hear evidence why the assessed value imposed by the County Assessment Office is incorrect. Respectfully Submitted G??;? Z? zoo9 RichgW. Bielicki, Pro se 2703 Logan Street Camp Hill, PA 17011 717-763-4457 VERIFICATION I, Richard J. Bielicki, hereby verify that the statements in the foregoing Petition are true and correct to the best of my knowledge and belief. I understand that statements made herein are subject to the penalties of Title 18 Pa. S.C. Section 4904 relating to unworn statements to authorities. October 20, 2004 ?.?chard ielicki 9 !,7 h3 ?) r 1.1 ?1 S I1??, CIV , .. S? i CJ RICHARD J. BIELICKI and JANET E. BIELICKI, Petitioners VS. CUMBERLAND COUNTY ASSESSMENT OFFICE, Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 04-5250 CIVIL : TAX ASSESSMENT APPEAL ORDER AND NOW, this o q day of 2004, a hearing in the above captioned Petition for Review is set for the c2/7d day of 2005-, at 1 30 o'clockp.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, hard J. and Janet E. Bielicki Petitioners ephen Tiley, Esquire For Respondent :rlm ,10 9 C .6 WV ! - AON UK 301140.031M r Stephen D. Tiley, Esquire Frey and Tiley Attorneys for Respondent Cumberland County Assessment Office 5 South Hanover Street Carlisle, Pennsylvania 17013 RICHARD L. BIELICKI and JANET E. BIELICKI, Petitioners V. CUMBERLAND COUNTY ASSESSMENT OFFICE Respondent Supreme Court No. 32318 Tel.: 717-243-5838 Fax.: 717-243-6441 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 2004-5250 TAX ASSESSMENT APPEAL ANSWER AND NOW, comes Respondent, Cumberland County Board of Assessment Appeals and County of Cumberland bi its Attorney, Stephen D. Tiley, Esquire, Assistant Cumberland County Solicitor for Tax Matters, and files this Answer, of which the following is a statement: 1. Admitted in part. Denied in part. The Court has jurisdiction over this matter pursuant to Section 704 of The Fourth to Eighth Class County Assessment Law (72 P. S. §5453.704). 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. By way of further Answer, the $228,500.00 assessment was a result of the year 2000 Countywide reassessment, and is irrelevant to this proceeding. Demetrios Touloumes and Connie A. Touloumes Page 1 of 3 Assessment Appeal, Parcel No. 40-13-0126-002 • f 6. Denied. The averments of this paragraph set forth conclusions of law to which no responsive pleading is required. Strict proof at trial is demanded. By way of further Answer, the assessment appealed is the assessment imposed as part of the year 2004 countywide reassessment, and the year 2000 assessment for the subject parcel, or any other parcel, is irrelevant. 7. Admitted in part. Denied in part. It is admitted that the Board of Assessment Appeals reduced the assessment of the subject property to $260,540.00. The within appeal being de novo, the assessment appealed is the original assessment fixed by the Assessment Office to wit: $307,440.00. By way of further Answer the percentage increases of the assessment for the subject property as opposed to others within the neighborhood are, without more, irrelevant. 8. Denied. The averments of this paragraph set forth conclusions of law to which no responsive pleading is required. Strict proof at trial is demanded. WHEREFORE, Respondents, Cumberland County Board of Assessment Appeals and County of Cumberland, pray Your Honorable Court for an Order denying Petitioner's appeal and setting the value of the subject real estate at $307,440.00, or such other amount as the Court may deem just and proper. Dated: Respectfully submitted, Stephen D. Tiley, Esquire Attorney for Respondent 5 South Hanover Street Carlisle, PA 17013 (717) 243-5838 Supreme Court I.D.#32318 Demetrios Touloumes and Connie A. Touloumes Page 2 of 3 Assessment Appeal, Parcel No. 40-13-0126-002 VERIFICATION I verify that the statements made in the foregoing Answer are true and correct, partially upon personal knowledge and partially upon my belief; to the extent language in the Answer is that of my attorneys, I have relied upon my attorneys in making this Verification. I understand that false statements herein are made and subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. Dated: 4WAf J '// onnie M. Mahoney, Chief Assessor Demetrios Touloumes and Connie A. Touloumes Page 3 of 3 Assessment Appeal, Parcel No. 40-13-0126-002 RICHARD L. BIELICKI and JANET E. BIELICKI, Petitioners V. CUMBERLAND COUNTY ASSESSMENT OFFICE Respondent : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, : PENNSYLVANIA No. 2004-5250 TAX ASSESSMENT APPEAL CERTIFICATE OF SERVI(:E I hereby certify that I served a true and correct copy of the foregoing Answer by placing a true and correct copy of the same in the United States mail, postage pre-paid, addressed to: Mr. Richard J. Bielicki Ms. Janet E. Bielicki Petitioners 2703 Logan Street Camp Hill, PA 170111 Date: /--4/ am©, -le / SAUL EWING, LLP Donn L. Snyder, Esquire Solicitor for Camp Hill Borough 2 North Second Street Harrisburg, PA 17101 JOHNSON, DUFFIE, STEWART & WEIDNER RIchard W. Stewart, Esquire Solicitor for Camp Hill School District P.O. Box 109 301 Market Street Lemoyne, PA 17043 Stephen . Tiley, Esquire Assistant Cumb. Co. Solicitor 5 S. Hanover Street Carlisle, PA 17013 (717) 243-5838 Attorney I.D.#32318 r? C -D RICHARD J. BIELICKI and JANET E. BIELICKI, Petitioners vs. CUMBERLAND COUNTY ASSESSMENT OFFICE, Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 04-5250 CIVIL TAX ASSESSMENT APPEAL ORDER AND NOW, this Y day of February, 2005, after hearing and consideration of the testimony adduced, and following review of the exhibits, the appeal of the petitioners is SUSTAINED to the extent that the value of the subject property is determined to be $240,000. BY THE COURT, Xiichard J. and Janet E. Bielicki Petitioners v8tephen Tiley, Esquire For Respondent :rlm / x Kevin Hess, . J •.r ? ? _. a? ?? .. PRAECIPE FOR WRIT OF EXECUTION - (MONEY JUDGMENTS) P. R. C. P. 3101 to 3149 IN THE COURT OF COMMON PLEAS PENNSYLVANIA STATE BANK CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff VS FACETS PURVEYORS OF FINE JEWELRY, LTD. 4401 CARLISLE PIKE CAMP HILL PA 17011 Defendant(s) Wri t NO. 20 NO. 04-5260 CIVIL TERM Term 2004 Amount due $ 40,000.00 Interest FROM DATE OF JUDG. 10120109 $7.77778 PER DIEM ?Atty's Comm. $ 2,000.00 and Costs TO BE DETERMINED$ TO THE PROTHONOTARY OF SAID COURT: ISSUE WRIT OF EXECUTION IN THE ABOVE MATTER, (1) Directed to the Sheriff of CUMBERLAND County, Pennsylvania; (2) against FACETS PURVEYORS OF FINE JEWELRY LTD. (3) and against Garnishee (s) (4) and index this writ (a) against FACETS PURVEYORS OF FINE JEWELRY LTD Defendant(s) and (b) (s), as a lis pendens against the real property of the defendant(s) in the name of the Garnishee(s) as follows: (Specifically describe property and note any specific direction to Sheriff) Furnish 4 copies for real estate levy) LEVY UPON ALL PERSONAL PROPERTY OF ABOVE-LISTED DEFENDANT(S) VE-LISTED ADDRESS INCLUDING BUT NOT LIMITED TO FURNITURE, EQUIPMENT, ELECTRONICS, INVENTOR] (5) Exemption has (not) been waived.' Robert D. Kodak, Esquire PO Box 11848 Harrisburg, PA 17108 (717) 238-7159 Dated 11/08/04 Attorney For Plaintiff(s) I- '(o)60 iE aTna aas 'pe,Tsap sT suapuad sTT e se 6uTxapuT pue pagoeaae ST aagsTuie6 ag, ;o aweu aq, UT /.auadosd Teas ;T dTuo pagaTdwoo aq pTnogs (q)(6) gde:6eze3 '(qI 60 LE aTna aaS -die,ouoggoid aqg dq d,unoo gegq uT assnOO ;o se pannbaa sT 6uTxapuT dqunoa iaggoue oq sanssT grin aqy uagM '(e)b0i£ aTna d4 pazxs0q,ne se pazTSap sT ?a0uesnssT 10 dgunOO aqq UT suor,roawa ayq ;0 6uTxapuT ;T dTuo pagaTdwoO eq pTnogs (e)(6) gdes6eiea '(Iran aqq uT papnTOul aq oq sT 9ags!uie6 paweu a uT dTuo pagaTdwoo aq pTnogs anoge) (E) gdei6e2ed -panssT goTgn uT d,unoo aqq ;o ;;TJags aqq o, dTuo pagaasTp aq dew 4uaw6pnE paiia;suesq a uo panssT grin e (o)COTE aTna uaPufl 'pagearpuT aq pTnogs dqunoo ayq '(I)COTE aTna dq pazTsoggne se d,unoo xaq,ous ;o ;;Tags aq, o, pagaasTp VT gTan aqq uegn (T) gdei6eied sapun 3SON a. ' O O N O x 4 ? E G E W F h H U ° N C z a N a z U) 2 z O rX4 O Q C4 U) E? r4 N W O >4 O y W W 3 R i h Cn u F C? W ? C C4 a m w w x 'd a O xa . a 0 Q w N C ? O P.' Q V v WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO 04-5260 Civil CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due PENNSYLVANIA STATE BANK, Plaintiff (s) From FACETS PURVEYORS OF FINE JEWELRY, LTD., 4401 CARLISLE PIKE, CAMP HILL, PA 17011 (1) You are directed to levy upon the property of the defendant (s)and to sell LEVY UPON ALL PERSONAL PROPERTY OF ABOVE-LISTED DEFENDANT(S) AT ABOVE-LISTED ADDRESS INCLUDING BUT NOT LIMITED TO FURNITURE, EQUIPMENT, ELECTRONICS, INVENTORY, ETC. (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of GARNISHEE(S) as follows: and to notify the gamishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof; (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $40,000.00 L.L. $.50 Interest FROM DATE OF JUDG 10/20/04 @ $7.77778 PER DIEM Atty's Comm $2,000.00 % Due Prothy $1.00 Arty Paid $37.00 Other Costs Plaintiff Paid Date: NOVEMBER 10, 2004 CURTIS R. LONG Prothonot (Seal) ?By A?_ Deputy REQUESTING PARTY: Name ROBERT D. KODAK, ESQUIRE Address: P O BOX 11848 HARRISBURG, PA 17108 Attorney for: PLAINTIFF Telephone: 717-238-7159 Supreme Court ID No. 18041 David A. Szewczak, Esq. Prothonotary Patricia A. Whittaker Deputy Prothonotary TO: Mr. Curtis R. Long Prothonotary -Pr w Superior Court of Pennsylvania Middle District November 22, 2004 Certificate of Remittal/Remand of Record RE: Ortenzio, K. v. Ortenzio, J. No. 1028 MDA 2003 Trial Court/Agency Dkt. Number: 1994-05250 Trial Court/Agency Name: Cumberland County Court of Common Pleas Intermediate Appellate Court Number: 100 Pine Street. Suite 400 Harrisburg, PA 17101 717-772-1294 wlvw.superior. court. state.pa.us Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Contents of Original Record: Original Record Item Parts Volumes of Exhibits Supplemental Part Filed Date Description August 28, 2003 5 August 28, 2003 3 April 23, 2004 1 Date of Remand of Record: LIAR U 7 2n ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by signing, dating, and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. Signature Printed Name Date /alv 1. A06013-04 KIMBERLY N. ORTENZIO, APPELLANT : IN THE SUPERIOR COURT OF PENNSYLVANIA V. JOHN M. ORTENZIO No. 1028 MDA 2003 No. 1047 MDA 2003 ORDER OF COURT The Court hereby DENIES the application filed December 6, 2004, requesting reargument or reconsideration of the decision dated November 22, 2004. PER CURIAM DATE: January 28, 2005 TRUE COPY FROM RECORD Attest: MR 0 7 Deputy Prothonotary Superior Court of PA - Middle District J.A06013/04 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P.65.37 KIMBERLY N. ORTENZIO, IN THE SUPERIOR COURT OF Appellant PENNSYLVANIA vs. JOHN M. ORTENZIO, Appellee No. 1028 MDA 2003 Appeal from the Order entered May 30, 2003 In the Court of Common Pleas of Cumberland County Civil, No. 05250 of 1994 KIMBERLY N. ORTENZIO, Appellee vs. JOHN M. ORTENZIO, Appellant IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1047 MDA 2003 Appeal from the Order entered May 30, 2003 In the Court of Common Pleas of Cumberland County Civil, No. 94-5250 BEFORE: LALLY-GREEN, GANTMAN, AND CAVANAUGH,* JJ. MEMORANDUM: FILED: November 22, 2004 The parties, Kimberly N. Ortenzio ("Mother") and John M. Ortenzio ("Father"), have filed an appeal and cross-appeal respectively from the order entered in the Cumberland County Court of Common Pleas, which disposed of Mother's petition for special relief and enforcement of the parties' marital *Judge Cavanaugh did not participate in this decision. J.A06013/04 settlement agreement and Father's counterclaim. We affirm in part, reverse in part, and remand for further proceedings. The relevant facts and procedural history of this case are as follows. The parties married on November 15, 1986. They have three children: a daughter, born August 14, 1987; a son, born November 28, 1989; and a son, born April 28, 1994. Prior to their marriage, the parties executed an ante-nuptial agreement, dated October 1986. This agreement addressed the parties' respective assets at the time and several other matters. After the birth of their first two children, the parties entered into another agreement on February 6, 1992. The parties intended the 1992 agreement to supercede their 1986 ante-nuptial agreement, unless the 1992 agreement was found to be invalid or substantially unenforceable, in which case the 1986 agreement would be revived and granted full force and effect. (Agreement, dated 2/6/92, at ¶ 22; R.R. at 691a). In essence, the 1992 agreement reflected the parties' joint ownership of the marital residence and provided for the disposition of the residence in the event of a divorce. (Id. at ¶ 2; R.R. at 676a-677a). Pursuant to the 1992 agreement, in the event of a divorce Mother would have the right to occupy the marital residence until the earliest of the following events: (1) such time as the parties' youngest child attained the age of twenty-five; or (2) one year after the graduation of their youngest child from a four-year undergraduate college; or -2- J.A06013/04 (3) such time as Mother ceased to occupy the property, with the parties' children, as her and their primary residence; or (4) Mother's death. (Id. at ¶ 2(a); R.R. at 676a). The 1992 agreement also provided Father would pay the mortgage on the property, all real estate taxes, insurance premiums, the "normal and reasonable expenses of upkeep of the property," and all utilities except telephone. (Id. at ¶ 5; R.R. at 677a-679a). Paragraph 5 of the agreement stated Father would pay Mother a lump sum of $250,000.00, plus $5,000.00/month until such time as Mother's right to occupy the marital property terminated. Paragraph 6 of the agreement provided in part that Father would pay $2,000.00/month/child in child support for each of the parties' children "whose primary residence is with [Mother] until such time as that child attained age twenty-one." (Id. at ¶ 6(a); R.R. at 679a). The 1992 agreement did not define the term "primary" in this or any other regard. As well, the 1992 agreement included a cost-of- living (""COLA") provision that allowed for certain increases in support and how those increases would be calculated. (Id. at ¶ 18; R.R. at 688a-689a). The parties' third child was born in April 1994. In June 1994, the parties separated. In September 1994, Mother filed a complaint in divorce, including in it counts for equitable distribution, alimony, alimony pendente cite, custody, and related insurance. - 3 - J.A06013/04 On October 23, 1995, the parties executed another agreement, reflecting their desire to live separate and apart, in anticipation of their impending divorce. By its stated terms, the purpose of the 1995 agreement was to clarify, modify, ratify and confirm their 1992 agreement. The parties also intended the 1995 agreement to be incorporated into, but not merged with, any divorce judgment obtained by either party. (Agreement, dated 10/23/95 at $¶ 8, 91 12; R.R. at 702a-703a). The 1995 agreement acknowledged that the parties were signing affidavits of consent necessary to finalize their divorce action. (Id. at ¶ 1; R.R. at 698a). The new agreement incorporated the 1992 agreement, but modified it to allow Mother to occupy the marital residence, on condition that she continued to occupy it with "any one" of the parties' children as her and their primary residence. (Id. at ¶ 3(a); R.R. at 699a). The 1995 agreement also increased a lump- sum payment to Mother and adjusted her alimony from $5,000.00/month to $5,305.00/month, in accordance with the COLA provision in the 1992 agreement. (Id. at ¶ 3(b); R.R. at 699a). Child support was also increased from $2,000.00/month/child to $2,122.00/month/child. (Id. at ¶ 3(d); R.R. at 700a). The parties agreed to "share joint legal custody of the children." (Id. at ¶ 3(g); R.R. at 701a). By virtue of paragraph 10, the parties established that modification or waiver of any provision of their agreement had to be in writing, and the failure of either party to insist upon -4- J.A06013/04 strict performance was not to be construed as a waiver of subsequent default. (Id. at ¶ 10; R.R. at 703a). Again, the agreement did not define the term "primary." The parties filed the 1995 property settlement agreement with the court, and Mother also filed a praecipe to withdraw the remaining claims in her divorce complaint. A final decree in divorce was entered on November 29, 1995, and the terms and conditions of the parties' 1995 agreement were incorporated but not merged with the divorce decree. On September 16, 1997, Mother filed a petition for special relief and enforcement of the parties' 1995 property settlement agreement, seeking a court order compelling Father to pay for certain repairs and upkeep of the former marital residence, pursuant to the parties' 1995 settlement agreement. Mother filed a second petition for emergency relief the same day, asking the court to order Father to pay the COLA increase due in 1997. Meanwhile, the parties also battled over physical custody of their children. On August 27, 1997, Father instituted a companion action with a complaint for custody and a petition for emergency relief in the form of an order confirming the parties' established custody schedule. In his complaint, Father stated the parties ""shared physical custody of the children since their separation in June 1994." (Father's Complaint for Custody, dated 8/27/96, at ¶ 5; R.R. at 708a). Father also claimed the children resided with him. -5- J.A06013/04 (Id. at ¶ 10; R.R. at 708a). In the next paragraph of the complaint, Father stated that the children resided with Mother. (Id. at ¶ 11; R.R. at 709a). Paragraph 13A further provided: "The children have always resided with both parents and have enjoyed a shared custody arrangement with them since they separated." (Id. at ¶ 13A; R.R. at 709a). In his petition for emergency relief, Father again asserted the parties "shared physical custody of their children" since June 1994. (Petition for Emergency Relief, dated 8/27/96 at ¶ 5; R.R. at 714a). By this petition, Father sought an interim order of the court '"to confirm the [custody] arrangement which the parties have enjoyed up to now" and to preserve the status quo. (Id, at ¶¶ 8, 9; R.R. at 715a). On August 29, 1996, the court entered an interim order confirming that the parties shared legal and physical custody of the minor children. The schedule set forth in this order provided Father with overnight physical custody of the children every Wednesday, Friday, Saturday, and Sunday. On October 10, 1996, the custody arrangement was modified to give Mother one weekend per month and Father three additional hours each Tuesday evening. On October 18, 1996, the court issued another order, vacating and replacing its prior custody orders, and again modified the parties' custody arrangement. Pursuant to the October 18th order, Father had overnight physical custody of the children on Tuesdays, Wednesdays, Fridays, -6- J.A06013/04 Saturdays, and Sundays every week, except for Mother's one weekend/month. A hearing was set for January 9, 1997. On January 9, 1997, the court granted Mother's request for a continuance and entered another custody order. The January 9th order made minor adjustments in Father's favor and granted Mother every fourth weekend. The court entered a special order on February 27, 1997, governing the children's spring holidays. This order was followed by several other special orders relating to the summer vacation period and other holidays. The court also scheduled a custody conciliation conference. Following a number of continuances, the parties finally appeared before the court on March 2, 1998, for a hearing with respect to Mother's September 1996 petitions for enforcement of the support and marital residence maintenance provisions of the parties' 1995 agreement. At the hearing, the parties reached an agreement regarding the outstanding support/maintenance issues and placed that agreement on the record. Father agreed to pay all back support due, including certain tuition expenses he had unilaterally deducted from the support payments, and the COLA increases per the 1995 agreement. In exchange, Mother agreed to withdraw her support action. Importantly, both agreed that no support action would be filed in the future, absent a ""significant change in the circumstances of the parties." (N.T. Hearing, 3/2/98, at 5; R.R. at 109a). The parties also -7- J.A06013/04 hammered out a compromise on Father's responsibility for maintenance of the former marital residence, and placed certain limitations on his expenditures for upkeep of the property. (Id. at 5-8; R.R. at 109a-112a). On April 9, 1998, following custody conciliation, the court entered another custody order for the summer of 1998. On November 11, 1998, the court ordered the parties to participate in mediation regarding their custody issues. The same custody schedule was continued in effect, but the order also provided a general holiday schedule for Thanksgiving, Christmas, Easter/Spring Break, Presidents' Day, and other school holidays. In July 1999, Mother filed a petition to schedule conciliation, because the parties were unable to resolve their custody differences through mediation. Thereafter, a custody evaluation was completed and a report issued in April 2000. The reporting psychologist recommended the parties utilize an equally shared custodial arrangement for their time with the children. The psychologist noted the custody schedule already in effect approximated equal sharing, but fell short of providing equal influence from both parents, as it gave Mother less time with the children. The stated purpose of the psychologist's recommendation was to increase Mother's time with the children. (Report and Recommendation of Arnold T. Shienvold, Ph.D., dated 4/22/00, at 17; R.R. at 831a) (emphasis added). On September 18, 2000, the court entered a stipulated order reflecting the parties' agreement to share physical custody of their three children -8- J.A06013/04 during alternating weeks, Wednesday after school to the following Wednesday after school, through the coming 2000-2001 school year and the summer of 2001. This arrangement was ratified by court order dated March 21, 2001. In July 2001, the parties stipulated to a minor modification of the March 2001 custody order as it pertained to the period of August 31, 2001 to January 16, 2002. After January 16, 2002, the parties reverted to alternate weeks of custody as outlined in the order of March 21, 2001. The following summarizes the parties' custody schedule to date:' TIME PERIOD CUSTODY SCHEDULE FATHER MOTHER •6/94-8/26/96 Father has custody Wed., Fri., Sat., Sun. nights 57% 43% •8/29/96-10/1/96 Father has custody Wed., Fri., Sat., Sun. nights 59% 41% 010/1/96-10/18/96 Father has custody Tues. eve., overnights Wed., and Fri., Sat., Sun. three of four weekends/mo 53% 47% 910/18/96-1/9/97 Father has custody Tues. and Wed. overnights, and Fri., Sat., Sun. three of four weekends/mo 65% 35% •1/9/97-2/27/97 Father has custody Tues. and Wed. overnights, and Fri., Sat., Sun. three of four weekends/mo 59% 41% •2/27/97-6/11/97 Father has custody Tues. and Wed. overnights, and Fri., Sat., Sun. three of four weekends/mo, including holiday time 59% 41% ' Any discrepancies in the percentages on this chart are due mainly to variations in the number of days included in the time period covered. -9- J.A06013/04 TIME PERIOD CUSTODY SCHEDULE FATHER MOTHER 96/11/97-9/8/97 Varied schedule according to calendar created by parties 59% 41% •9/8/97-5/31/98 Varied schedule according to calendar created by parties 58% 42% •5/31/98-9/30/98 Varied schedule according to calendar created by parties 64% 36% 99/30/98-6/1/99 Father has custody Tues. and Wed. overnights, and Fri., Sat., Sun. three of four weekends/mo, including some holiday time 60% 40% 96/1/99-8/31/99 Varied schedule according to calendar created by parties 57% 43% •8/31/99-8/30/00 Father has custody Tues. and Wed. overnights, and Fri., Sat., Sun. three of four weekends/mo, including some holiday time 60% 40% •8/30/00-3/31/01 Parties have alternating weeks from Wed. to Wed. 50% 50% 93/21/01-present Parties have alternating weeks from Wed. to Wed. 50% 50% By letter dated February 21, 2002, Mother's counsel informed Father that Father had not met the 2001 COLA increases in his support obligations. Counsel also advised that, in the course of calculating the 2001 increases, Mother's accountant discovered errors in the calculations of previous COLAs. According to Mother's counsel, the incorrect calculations starting in 1995 caused substantial underpayment over the years in the amount of - 10 - J.A06013/04 $75,240.64. Counsel demanded payment of the shortfall as well as future support payments in the full amount to avoid further deficiencies. In response, Father filed a complaint against Mother for child support on April 29, 2002. On July 8, 2002, the support conference officer found Mother had no obligation to pay child support to Father, due to the gross disparity of their respective incomes, particularly in light of the parties' 1995 agreement. By order of the same date, the trial court dismissed Father's complaint for child support without prejudice.2 As of June 30, 2002, Father unilaterally reduced his child support payments to Mother and stopped paying some of the expenses related to the former marital home. In response, Mother filed a petition for special relief, requesting enforcement of the parties' property settlement agreements and their agreement made on the record at the March 2, 1998 hearing, and other equitable relief in the form of counsel fees associated with the petition. Specifically, Mother sought to (1) enforce Father's child support and alimony obligations; (2) recover the deficit in the COLA increases to the support, which had been calculated on the low side since 1995; (3) prevent Father from making independent offsets to his support payments, 2 According to the transcript of the October 3, 2002 hearing, the domestic relations officer's decision was appealed and is currently pending. (N -T. Hearing, 10/3/02, at 41; R.R. at 325a). However, we have not been provided with any confirmation of that fact, such as a certified docket or other record information regarding that action. - 11 - J.A06013/04 particularly for items Mother had already paid; and, (4) compel Father to pay for or reimburse Mother for costs associated with the maintenance and upkeep of the former marital residence. (Mother's Petition for Special Relief; R.R. at 912a-927a). In his response, Father contested his continued obligations per the agreements, due to an alleged material change in the physical custody of the children; namely, the parties shared physical custody on a 50-50 basis. Father maintained he did not completely stop paying child support; instead, he paid $1,280.00/month in child support for the months of July and August 2002, based solely upon his own calculations. Father also alleged his financial circumstances had materially changed insofar as his construction company was in Chapter 11 bankruptcy, causing a dramatic decrease in his gross income. Father further averred Mother's claims for alimony/child support COLAs were wholly or partially barred by the applicable statute of limitations, and by the principles of estoppel and/or waiver. In his counterclaim, Father asserted that Mother's right to receive child support/alimony was predicated upon her right to occupy the former marital residence; and, both rights terminated with the recent change in physical custody of the children to a 50-50 basis. Specifically, Father averred that, as of the court's order of March 21, 2001, the children's "primary" residence -12- I.A06013/04 was no longer the former marital home, because the children presently enjoyed a "jointly shared" residency with each parent. Father again claimed a substantial change in his financial circumstances, causing a "dramatic decrease" in his gross income. According to Father, these changes necessitated a resetting of the child support obligation as between both parties. Father also asserted a right to reimbursement from Mother of all alimony payments, all mortgage, real estate, utility bills, and all child support (less adjustments) paid since March 21, 2001. Finally, Father requested liquidation of the former marital realty through sale. (Father's Response to Mother's Petition for Special Relief; R.R. at 198a-240a). In her reply and answer to Father's new matter and counterclaim, Mother denied any substantial change in either custodial or financial circumstances. Specifically, Mother declared the recent child custody arrangement did not represent a significant change in the parties' custody arrangement. She also maintained the former marital home was her residence and at all times has been, and is, the primary residence of the children within the meaning of the parties' agreements. Further, Mother denied any material change in Father's economic circumstances since the on-the-record agreement of March 2, 1998. According to Mother, the principles of estoppel and/or waiver applied to Father, who had honored the parties' agreements in the past, without regard to the children's custody - 13 - J.A06013/04 schedule, until he filed this counterclaim in 2002. (Mother's Reply to Father's Response with New Matter and Counterclaim; R.R. at 270a-282a). Following discovery, the matter proceeded before the court for three days of hearings, during which the court considered testimony and other evidence as well as argument on the parties' claims. By order and opinion dated May 30, 2003, the court ruled: (1) Father remained obligated to pay alimony and property expenses pursuant to the parties' agreements; (2) Father's obligation to pay child support per the parties' agreements ceased as of March 21, 2001; (3) Father must pay amounts due for back alimony and child support from August 1, 1998 through March 2001. On June 9, 2003, Father filed exceptions to the court's order. On June 20, 2003, Mother filed a motion to strike Father's exceptions. Mother filed her notice of appeal on June 25, 2003; Father filed his notice of cross-appeal on June 26, 2003. By order dated July 8, 2003, the court granted Mother's motion to strike Father's exceptions. In her appeal, docketed at No. 1028 MDA 2003, Mother raises seven issues: DOES A PARTY JUDICIALLY ADMIT HIS OBLIGATION TO PAY CONTRACTUAL CHILD SUPPORT WHILE THE PARTIES SHARE PHYSICAL CUSTODY WHERE HE JUDICIALLY ADMITTED THEY SHARED CUSTODY WHEN THE PARTIES EXECUTED THE AGREEMENT? ARE CUSTODY ORDERS RES JUDICATA SO AS TO PRECLUDE A PARTY FROM LITIGATING WHETHER THERE WAS A CHANGE FROM PRIMARY TO SHARED CUSTODY -14- J.A06013/04 THAT ALTERED HIS OBLIGATION WHERE SHARED CUSTODY? CONTRACTUAL CHILD SUPPORT THE ORDERS PROVIDED FOR IS A PARTY JUDICIALLY ESTOPPED FROM CLAIMING HIS CONTRACTUAL CHILD SUPPORT OBLIGATION ENDED BECAUSE THE PARTIES NOW SHARE PHYSICAL CUSTODY WHERE THEY SHARED PHYSICAL CUSTODY WHEN THE AGREEMENT LEADING TO THE DIVORCE DECREE WAS SIGNED AND WHEN HE AGREED IN OPEN COURT TO MAKE THE PAYMENTS? DO THE PARTIES INTEND "'PRIMARY RESIDENCE" TO INCLUDE SHARED PHYSICAL CUSTODY FOR PURPOSES OF A CONTRACTUAL CHILD SUPPORT OBLIGATION WHERE THE PARTIES SHARED CUSTODY WHEN THE AGREEMENT WAS MADE AND AT ALL TIMES THEREAFTER, AND THE OBLIGOR PAID SUPPORT UNDER THE AGREEMENT FOR OVER SIX YEARS? MAY PARTIES WAIVE THE RIGHT TO DOWNWARD MODIFICATION OF CHILD SUPPORT UNDER THE DIVORCE CODE SECTION 3105(B)? UNDER SECTION 3105(B), CAN A WEALTHY MAN AVOID HIS CONTRACTUAL CHILD SUPPORT OBLIGATION BY SHOWING HIS PORTFOLIO DECLINED WITHOUT PROVING INABILITY TO PAY? SHOULD ATTORNEYS' FEES BE AWARDED WHEN A PARTY MUST JUDICIALLY ENFORCE A MARITAL AGREEMENT? (Mother's Brief at 3). In his cross-appeal, docketed at No. 1047 MDA 2003, Father raises the following issues: WHETHER THE [TRIAL] COURT IN DETERMINING THAT THE PARTIES' CHILDREN NO LONGER PRIMARILY RESIDE WITH [MOTHER], ERRED IN FINDING THAT THE CONDITIONS SET FORTH IN PARAGRAPH 2(a)(iii) FOR TERMINATION OF HOUSE AND SPOUSAL MAINTENANCE -15- J.A06013/04 PAYMENTS HAD NOT OCCURRED[?] THE [TRIAL] COURT ERRED IN FAILING TO FIND THE SPECIFIC DOLLAR AMOUNTS SET FOR SPOUSAL MAINTENANCE AND CHILD SUPPORT IN THE AGREEMENT DATED OCTOBER 23, 1995 INCLUDED A FORBEARANCE OF THE COST OF LIVING ADJUSTMENT AND EACH PARTY'S SUBSEQUENT RELIANCE UPON THIS UNDERSTANDING AS REFLECTED IN THE COST OF LIVING ADJUSTMENTS CALCULATED BY [MOTHER'S] EXPERTS EVIDENCED THIS AGREEMENT[?] WHETHER THE [TRIAL] COURT ERRED IN FAILING TO APPLY THE PRINCIPLES OF LACHES OR WAIVER TO BAR [MOTHER'S] CLAIM FOR MISCALCULATED COST OF LIVING ADJUSTMENTS FOR SPOUSAL MAINTENANCE AND CHILD SUPPORT WHICH OCCURRED AS THE RESULT OF THE ERRORS OF [MOTHER'S] EXPERTS AND LEGAL COUNSEL[?] WHETHER THE [TRIAL] COURT ERRED IN UTILIZING THE FILING DATE OF [MOTHER'S] PETITION FOR SPECIAL RELIEF IN JULY 2002 TO APPLY THE STATUTE OF LIMITATIONS INSTEAD OF THE DATE [THAT] MISCALCULATIONS WERE ALLEGEDLY MADE BY [MOTHER'S] EXPERTS AND WERE TO COME INTO EFFECT IN 1995 AND 1997[?] (Father's Brief at 3). Private support agreements are subject to contract principles and are enforceable in an action at law for damages or in equity for specific performance. Nicholson v. Combs, 550 Pa. 23, 42, 703 A.2d 407, 417 (1997). The action at law for damages might include the unpaid amount of support plus interest, whereas relief in equity for specific performance seeks an order directing the payor to comply with his future support obligations -16- J.A06013/04 under the agreement. Id. "The powers of a domestic relations judge are plenary and the function is that of a law judge or equity chancellor as the case demands." Horowitz v. Horowitz, 600 A.2d 982, 984 n.1 (Pa.Super. 1991). When interpreting a marital settlement agreement, "the trial court is the sole determiner of facts and absent an abuse of discretion, we will not usurp the trial court's fact-finding function." Chen v. Chen, 840 A.2d 355, 360 (Pa.Super. 2003), appeal granted in part, Pa. , 853 A.2d 1011 (2004). On appeal from an order interpreting a marital settlement agreement, we must decide whether the trial court committed an error of law or abused its discretion. Tuthill v. Tuthill, 763 A.2d 417, 419 (Pa.Super. 2000) (en banc), appeal denied, 565 Pa. 675, 775 A.2d 808 (2001). ""[J]udicial discretion" requires action in conformity with law on facts and circumstances before the trial court after hearing and due consideration. Such discretion is not absolute, but must constitute the exercises of sound discretion. This is especially so where, as here, there is law to apply. On appeal, a trial court's decision will generally not be reversed unless there appears to have been an abuse of discretion or a fundamental error in applying correct principles of law. An "abuse of discretion" or failure to exercise sound discretion is not merely an error of judgment. But if, in reaching a conclusion, law is overridden or misapplied, or the judgment exercised is manifestly unreasonable or lacking in reason, discretion must be held to have been abused. In re Deed of Trust of Rose Hill Cemetery Assn Dated Jan. 14, 1960, -17- J.A06013/04 527 Pa. 211, 216, 590 A.2d 1, 3 (1991) (internal citations omitted). See also Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 2000). "Because contract interpretation is a question of law, this Court is not bound by the trial court's interpretation." Chen, supra at 360. Initially, Mother contends Father made numerous judicial admissions that the parties shared physical custody of their children when the parties executed their 1995 agreement and at all times thereafter, such that no shift of '*"primary" custody or change in the children's "primary" residence occurred upon implementation of the parties' current custody arrangement. Father's admissions include Paragraph 5 appearing in both his custody complaint and his petition for emergency relief in which he averred: 5. [Father] and [Mother] have previously agreed to share legal custody of their children as part of a property settlement agreement executed in October of 1995. Although they have not set it out in a written agreement, the parties have shared physical custody of their children since they separated in June of 1994. [Father] seeks an award of shared physical custody of the minor children to confirm the arrangement which the parties have enjoyed up to now. (See Father's Complaint for Custody, dated 8/27/96, ¶ 5; R.R. at 708a and his Petition for Emergency Relief, dated 8/27/96 at ¶ 5; R.R. at 714a). Mother submits Father's complaint for custody and his affidavit in support of his petition for emergency relief constitute judicial admissions that the parties have always shared physical custody of their children. Further, -18- J.A06013/04 Mother maintains these filings of August 1996 led the court to enter an interim custody schedule on August 29, 1996, explicitly stating: "And now this 29th day of August, 1996, upon Petition of [Father], it appearing that the parties have had shared legal and physical custody of their three minor children up to this point, pending further order, we hereby order and direct...." (See Trial Court Order, dated August 29, 1996; R.R. at 721a) (emphasis added). Mother next directs our attention to the trial court's order dated October 10, 1996, following custody conciliation, in which the trial court again refers to the parties' custody as "shared physical custody." (See Trial Court Orders, dated October 10, 1996, and October 18, 1996; R.R. at 728a, 731a).3 Mother then highlights various admissions in Father's subsequent pleadings that indicate Father's acknowledgment of his duties under the parties' agreements. Mother emphasizes Father's March 2, 1998 on-the- record reaffirmation of his support obligations under the parties' 1995 agreement. (N.T. Hearing, 3/2/97, at 3; R.R. at 107a, 964a). Mother avers the subsequent court orders entered by stipulation of the parties provide a shared physical custody schedule. Mother insists the pleadings and orders in this case demonstrate that Father has consistently maintained and benefited from shared physical custody of the minor children 3 We note all of these court orders were entered by agreement of the parties. -19- J.A06013/04 since 1995. Mother concludes the trial court erred when it failed to find that Father had judicially admitted the parties were sharing physical custody of the children at all times, "so that there was no change in the 'primary residence' of the children as the parties intended to use that term under their October 1995 Agreement or the March 2, 1998 Agreement." (Mother's Brief at 25). In her second issue, Mother argues Father is precluded by the doctrine of res judicata from relitigating the custodial status of the children. Mother contends the court's numerous custody orders providing for "shared physical custody" firmly establish a shared physical custody arrangement since the parties' separation. To demonstrate the history of "shared physical custody," Mother provides a chart detailing the parties' various physical custody schedules through the years. Mother relies on the chart to show that until August 31, 1999, Father actually had the children more than 50% of the time, under a shared custody arrangement. Mother maintains Father cannot now be heard to say the current custody arrangement, which provides the parties with 50-50 custody, represents a change in the "primary residence" of the children to excuse Father's obligations under the parties' agreements of 1995 and 1998. Mother concludes the court erred in failing to find that the custody orders were res judicata and established as a matter of law that no change in the "primary residence" of the children ever - 20 - I.A06013/04 occurred, within the meaning of the parties' agreements. In her third issue, Mother claims the application of judicial estoppel bars Father from denying his contractual support obligations based on an alleged change in custody from primary physical custody with Mother to shared physical custody after March 21, 2001. Mother insists Father filed numerous pleadings and was able to obtain court orders for the enforcement of a shared physical custody arrangement, based upon his construction and interpretation of the parties' agreements. Mother insists Father is prohibited from changing his earlier and successful position, after he obtained favorable orders as a result of that earlier position, so he can dodge his contractual support obligations. Mother also notes Father should be estopped by his subsequent acts of making payments when a shared physical custody arrangement was in place. Mother contends Father's agreement to make child support payments during a time when he admitted to a shared custody arrangement now precludes him from taking the opposite position and arguing that until the March 21, 2001 custody order, Mother had primary physical custody of the children and Father merely had liberal visitation. Mother concludes the court erred in relieving Father of his child support obligations on his claim that the March 21, 2001 custody order represented a change of the children's custodial status. In her fourth issue, Mother asserts the parties' 1995 and 1998 on-the- -21- J.A06013/04 record agreements were made while the parties operated under a de facto shared physical custody arrangement. Mother reasons the parties' subsequent conduct pursuant to the agreements constitutes continued evidence of the parties' intent on the meaning of the term "primary residence" as used in the agreements. Mother avers this construction of the parties' agreements is supported by their actions throughout the performance of the agreements and the proceedings to enforce the agreements. Mother maintains that since the parties signed the 1995 agreement, for the next six and one-half years, Father paid his obligations under the parties' 1995 agreement and reaffirmed those obligations before the court in 1998, notwithstanding the fact that he had as much if not more physical custody of the children than Mother had. Mother insists this conduct demonstrates that the parties' fundamentally considered the former marital residence as the children's "primary residence," despite the variations in their actual custody arrangements. Mother submits the current 50-50 custody schedule had no significant effect on the already existing custody arrangement or on the parties' intent as to the meaning of "primary residence" under their agreements. In fact, Mother claims, under the current alternating weekly custody arrangement, the children actually spend more time with Mother at the former marital residence than they did in the past. - 22 - I.A06013/04 In essence, Mother maintains the term "primary residence," although not defined in the agreements, was obvious, understood, and continuously ratified by the parties to mean the former marital residence, even when Father actually had more time with the children than he does now. Underlying all of Mother's arguments is the proposition that Father's intent as to the meaning of the term "primary residence" must be ascertained from his statements and conduct throughout the parties' performance of the agreements, not from some abstract definition of the term belatedly employed by him to defeat his contractual obligations. Mother declares she would not have agreed to the alternating weekly custody schedule currently in force, had she known she was surrendering her rights, and those of her children, to support under the agreements. Mother concludes the court erred in excusing Father from any further child support obligations under the parties' agreements on the basis of the current custody arrangement. In response, Father reasons he cannot be judicially bound to a particular position in this case, because his admissions in prior proceedings are merely "evidentiary admissions" at best. Father calls the statements he made in his pleadings "disputed facts," subject to contradiction or explanation. According to Father, Mother did indeed contest his factual assertions regarding the nature of the parties' custodial arrangements. Therefore, Father concludes he cannot be bound by whatever he said in his - 23 - J.A06013/04 custody pleadings, but Mother should be so bound. Father also asserts Mother waived any claim that the custody orders were res judicata and established as a matter of law that no change in the "primary residence" of the children occurred as a result of the most recent custody arrangement. According to Father, Mother failed to raise res judicata as a defense in her new matter to Father's counterclaim for release from his contractual support and maintenance obligations retroactive to March 21, 2001, and return/reimbursement of all payments made pursuant to the parties' agreements subsequent to that date. Alternatively, Father insists the doctrine of res judicata is inapplicable, because the identity of the present cause of action is contract, not child custody, and the "thing" sued upon is support, not child custody. Additionally, Father denies he can be judicially estopped from claiming Mother had "primary" physical custody of the children prior to March 21, 2001. Father maintains the custody litigation did not end until March 2001 with a "shared" custody arrangement. As long as the custody of the children was not "finally resolved," according to Father, "it was next to impossible for him to prove the primary residence' of the children was not with [Mother]." (Father's Brief at 22). Father insists the custody orders entered prior to March 2001 were only "interim orders," his position has always been consistent, and the issue of whether the children's "primary residence" -24- 3.A06013/04 remained with Mother was not the subject of any legal proceedings until now. Father further submits he received no economic benefit from his stipulation of March 2, 1998. Therefore, he should not be judicially estopped from claiming he has no further obligations under the current custody arrangement as a result of his statements made in court in March 1998, where the primary residence of the children was not and is not with Mother. Father further claims his failure to insist upon strict performance of the parties' agreement cannot be considered a waiver of his right to argue for strict performance under the current custody arrangement. Father directs our attention to Paragraph 10 of the parties' agreement, which states that any modification or waiver of their agreement must be in writing and executed with the same formality as the agreements. Father concludes all of Mother's arguments concerning estoppel and/or waiver overlook the very reason why the parties negotiated and incorporated the modification/waiver provision; that is, to avoid the precise arguments Mother now advances. Father offers he is merely invoking strict performance of the terms of the parties' agreements and cannot be precluded from doing so now simply because he did not do so in the past. Finally, Father argues the term "primary residence" as contained in the parties' agreements is clear and unambiguous, and does not require judicial interpretation to be understood. Father submits the circumstances surrounding the custody of the children in 1992 and in 1995 were sufficient - 25 - J.A06013/04 to classify the former marital property as the children's "primary residence." According to Father, since the inception of the current 50-50 child custody arrangement in September 2000, the children cannot be said in any sense to maintain their ""primary residence" at Mother's home. Therefore, Father concludes his duty to pay child support in the amount set forth in the agreements has ceased. Alternatively, Father suggests if this Court should decide the term "primary residence" requires judicial interpretation, then the term as set forth in the support provisions of the parties' agreements lends itself exclusively to his analysis. Father insists the intent of the parties as to the meaning of the term "primary residence" must be drawn solely from the parties' 1992 agreement, wherein the parties envisioned the former marital residence as the place where the children would reside the vast majority of their time. Father declares even the terms of the agreement anticipated the children's primary residence could change; and, in fact, it did with the most recent custody arrangement. Because the child custody arrangement is now "significantly different" than it was at the time of the parties' 1992 or 1995 agreements, neither Mother's home nor Father's home can be called the children's "primary residence." Therefore, Father concludes the only reasonable interpretation of the term "primary residence" necessarily excuses him from further contractual child support obligations. - 26- I.A06013/04 The fundamental dispute underlying the parties' debate is the meaning of the term "primary residence" as contained in their agreements. Whereas Mother offers various legal doctrines to preclude Father from contesting his obligations under the parties' agreements and Father contests the application of those doctrines, the ultimate decision in this case actually turns on the intent of the parties as to the meaning of the expression "primary residence," found in their agreements. For the following reasons, we agree with Mother's position. ""A settlement agreement between [spouses] is governed by the law of contracts unless the agreement provides otherwise." Chen, supra at 360. Established Pennsylvania law states: When interpreting the language of a contract, the intention of the parties is a paramount consideration. In determining the intent of the parties to a written agreement, the court looks to what they have clearly expressed, for the law does not assume that the language was chosen carelessly. When interpreting agreements containing clear and unambiguous terms, we need only examine the writing itself to give effect to the parties' intent. Melton v. Melton, 831 A.2d 646, 653-54 (Pa.Super. 2003) (internal citations omitted). In other words, the intent of the parties is generally the writing itself. Kripp v. Kripp, 849 A.2d 1159, 1163 (2004). "In ascertaining the intent of the parties to a contract, it is their outward and objective manifestations of assent, as opposed to their -27- I.A06013/04 undisclosed and subjective intentions, that matter." Espenshade v. Espenshade, 729 A.2d 1239, 1243 (Pa.Super. 1999). Thus, [T]he court may take into consideration the surrounding circumstances, the situation of the parties, the objects they apparently have in view, and the nature of the subject-matter of the agreement. The court will adopt an interpretation that is most reasonable and probable bearing in mind the objects which the parties intended to accomplish through the agreement. Laudig v. Laudig, 624 A.2d 651, 653 (Pa.Super. 1993). See also Melton, supra (stating court may take into account attendant circumstances to determine parties' intent, when parties' intentions are unclear). "Before a court will interpret a provision in...a contract in such a way as to lead to an absurdity or make the...contract ineffective to accomplish its purpose, it will endeavor to find an interpretation which will effectuate the reasonable result intended." Laudig, supra at 654. "[A] contract provision will not be considered ambiguous simply because the parties do not agree upon the proper construction." Espenshade, supra at 1242. If left undefined, the words of the contract are to be given their ordinary meaning. ... When ...an ambiguity exists, parol evidence is admissible to explain or clarify or resolve the ambiguity, irrespective of whether the ambiguity is patent, created by the language of the instrument, or latent, created by extrinsic or collateral circumstances. A contract is ambiguous if it is reasonably susceptible of different constructions and capable of being understood in more than one sense. -28- J.A06013/04 Id. If a term contained in a contract is generally defined and used in a number of different ways, is reasonably susceptible to different constructions, and is capable of being understood in more than one sense, it is ambiguous. Kripp, supra (holding term "cohabitate" in parties' property settlement agreement was ambiguous under standard enunciated; parol evidence was admissible to clarify intent of parties). Ambiguity of a contract is a question of law. Id. at 1164 n.5. "Our standard of review over questions of law is de novo and to the extent necessary, our review is plenary as [the appeals] court may review the entire record in making its decision." Id. In the instant case, the parties' agreements do not define the term "primary residence" or incorporate a definition from an outside source. See id. Neither the Child Custody Act nor the rules of civil procedure define "primary" with respect to custody. See 23 Pa.C.S.A. § 5302; Pa.R.C.P. 1915.1. Further, there is nothing in the statute or the rules of civil procedure to foreclose the use of contract law to determine the parties' intent on this matter. See Kripp, supra. Thus, the concept of "primary residence" is even less definite, when viewed in the context of these private agreements. See id. Moreover, the term "primary," in reference to the children's residence, is reasonably susceptible to various legitimate interpretations in both legal and common usage, and is not necessarily -29- J.A06013/04 limited by definition to "the place where the children reside more than fifty percent of the time. ,4 In our view, the support provisions in the parties' agreements are capable of being understood in more than one sense, particularly in light of extrinsic or collateral circumstances. See id. The record makes clear the parties have operated under a de facto shared custody arrangement since their separation. Further, in his 1998 on-the-record statement, Father reaffirmed his obligations under the agreements and promised not to challenge the support provisions in the future, absent a "significant change in the circumstances of the parties." (N.T. Hearing, 3/2/98, at 5; R.R. at 109a) (emphasis added). The parties' longstanding course of conduct or performance of the agreements constitutes unmistakable evidence of their joint understanding as to the meaning of the term "primary residence." See Espenshad, supra. For six and one-half years, Father paid his obligations under the parties' 1995 agreement and reaffirmed those obligations before the court in 1998, notwithstanding the fact that he consistently had more physical custody of the children than Mother. As further evidence of the parties' shared understanding of the meaning of the term "primary residence," we note Father continued his 4 See, e.g., American Heritage Dictionary (4th ed (2000) (defining "primary" as first or highest in rank; also occurring first in time or sequence; earliest); Black's Law Dictionary 1190 (6th ed 1990) (defining "primary" as first, principal, chief, leading, first in time, development or attention); Roget's II: The New Thesaurus (3rd ed) (1995) (defining "primary" as preceding all others in time; earliest, first, initial; direct; immediate). - 30 - J.A06013/04 support payments under the parties' agreements for another year after the current custody arrangement was ratified by court order on March 21, 2001. We note Father raised his present objections in immediate response to having been advised by Mother's counsel of a shortfall in previous support adjustments and a demand for payment of the shortfall as well as future support payments in the full amount to avoid further deficiencies. We conclude the parties' conduct demonstrates their fundamental understanding that the former marital residence was the children's "primary residence," despite the modest variations in their custody arrangements. As a practical matter, under the current alternating weekly custody arrangement, the children actually spend more time with Mother at the former marital residence than they ever did since the parties' separation. The current custody arrangement simply does not represent a "significant change in circumstances" to provide grounds for termination of all child support under the parties' agreements. We refuse to allow the March 21, 2001 order, and the very minor adjustment in custody it represented, to defeat Father's long-standing, repeatedly-affirmed support obligations under the parties' agreements, as the order itself does not constitute a significant change in custodial circumstances. Accordingly, we reverse the trial court's decision to terminate Father's child support obligations under the parties' - 31 - J.A06013/04 agreements, on the basis of the March 21, 2001 order and the current custody schedule.5 In Mother's fifth issue, she claims both parties waived their rights under the Divorce Code when they entered into their written marital settlement agreements. Mother submits this waiver is broad enough to include any right to downward modification of the child support provisions available under 23 Pa.C.S.A. § 3105(b). In support of her contention, Mother directs our attention to paragraphs 10, 12, and 13 in the parties' 1995 agreement, which provide: (10) MODIFICATION AND WAIVER. Any modification or waiver of any provision of this Agreement shall be effective only if made in writing and executed with the same formality as this Agreement. The failure of either party to insist upon strict performance of any of the provisions of this Agreement shall not be construed as a waiver of any subsequent default of the same or similar nature. (12) ENTRY AS PART OF DECREE. It is the intention of the parties that this [A]greement shall 5 Due to our favorable disposition of Mother's claim for continued child support on the basis of the parties' subsequent performance of the agreements as continued evidence of the parties' intent with respect to the meaning of the term "primary residence," we decline to address Mother's arguments concerning judicial admissions, res judicata, or judicial estoppel. We note, however, that all of the court's prior orders were consent decrees, which are not considered "legal determinations"; instead, they constitute agreements between the parties. See genera//y Osia/ v. Cook, 803 A.2d 209, 213 (Pa.Super. 2002). - 32 - J.A06013/04 survive any action for divorce which may be instituted or prosecuted by either party and no order, judgment or decree of divorce, temporary, final or permanent, shall affect or modify the financial terms of this agreement. This [A]greement shall be made a part of any such judgment or decree or final divorce. (13) DOMESTIC RELATIONS CODE OF THE COMMONWEALTH OF PENNSYLVANIA. Except as specifically provided in the underlying [A]greement, as modified and clarified herein, both parties waive any claims they may have against the other under the Domestic Relations Code of the Commonwealth of Pennsylvania including, but not limited to, alimony, alimony pendent cite, counsel fees, costs and equitable distribution of marital property. (Agreement, dated 10/23/95 at ¶$ 101 121 13; R.R. at 703a-704a). Mother insists no public policy reason precludes parties to a contract from agreeing to waive their rights under Section 3105(b) for downward modification, as Father did in this case. Mother concludes the court erred in unnecessarily inquiring into Father's allegation of changed financial circumstances, and in failing to find Father had waived his rights under Section 3105(b) of the Divorce Code. We disagree. Section 3105(b) of the Divorce Code in relevant part provides: § 3105. Effect of agreement between parties (b) Certain provisions subject to modification.-A provision of an agreement regarding child support, visitation or custody shall be subject to modification by the court upon a showing of changed circumstances. - 33 - J.A06013/04 23 Pa.C.S.A. § 3105(b). The statute makes clear that matters pertaining to child support shall remain subject to court supervision. Thomson v. Rose, 698 A.2d 1321 (Pa.Super. 1997), appeal denied, 552 Pa. 697, 716 A.2d 1249 (1998). The statute applies to all marital agreements entered into after its enactment. Nicholson, supra (stating "parties who executed agreements on or after February 12, 1988, knew that downward and upward modification would be a possibility, and therefore they could negotiate their agreements relying on this proposition"). Thus, a court is allowed to modify the terms of a marital settlement agreement, entered into after February 12, 1988, with respect to child support upward or downward upon a showing of changed circumstances. Boullianne v. Russo, 819 A.2d 577, 580 (Pa.Super. 2003); Patterson v. Robbins, 703 A.2d 1049 (Pa.Super. 1997). In the instant case, the parties entered into their 1992 and 1995 agreements after the enactment of Section 3105. Their agreements specifically provide that modification "shall be effective only if made in writing and executed with the same formality as this Agreement." Contrary to Mother's contention, we conclude that while the parties' counseled agreements are binding as to them, the generic modification/waiver provisions contained in the agreements are ineffective to oust the jurisdiction of the court with respect to the child support terms contained in the agreements. See 23 Pa.C.S.A. § 3105(b); Nicholson, - 34- J.A06013/04 supra; Boullianne, supra; Patterson, supra. Accordingly, the court properly inquired into Father's allegations of changed financial circumstances in this context. Next, Mother argues Father did not qualify for a downward modification of his child support obligations pursuant to 23 Pa.C.S.A. § 3105(b), because he failed to prove any relevant material change in his financial circumstances. Mother maintains the standard is not measured simply by a change in Father's assets but by a demonstrated material change that causes a proven inability to pay. Notwithstanding the alleged decrease in Father's assets, Mother insists he failed to prove his inability to pay his support obligations under the parties' agreements. Mother draws our attention to Father's statement of assets, which showed a net worth of $7,782,556 as of December 31, 2001. His income and expense statement listed assets in the amount of $9,781,733. Father's own expert stated Father's net worth as of October 31, 2002 was at least $5,131,087. Father's cash flow through one personal checking account for eleven of the twelve months in 2001 was $846,283.50. In the first six months of 2002, the cash flow through that account was $1,084,782.69. Mother maintains Father should not be allowed to reduce or avoid his contractual support obligation merely by showing that his still large portfolio has experienced a decrease in value, if his current financial situation demonstrates the decrease is not - 35 - I.A06013/04 material to his overall ability to pay. Mother concludes the trial court erred in its determination that the change in Father's net worth was material and sufficient to defeat his child support obligations under the parties' agreements. We agree. Under Pennsylvania law, the party requesting modification of an existing agreement regarding child support must demonstrate a material and substantial change in circumstances. See generally Samii v. Samii, 847 A.2d 691 (Pa.Super. 2004). When the obligor requests a downward modification of child support, the proper focus is the obligor's disposable income. Labar v. Labar, 557 Pa. 54, 731 A.2d 1252 (1999). ""[I]ncome must reflect actual financial resources and not the oft-time fictional financial picture which develops as a result of...federal income tax laws." Id. at 60, 731 A.2d at 1255. "Otherwise put, cash flow ought to be considered and not federally taxed income." Id. ""Depreciation and depletion expenses should be deducted from gross income only when they reflect an actual reduction of the party claiming the deductions." Id. In the instant case, Mother presented evidence that Father's net worth or financial picture is and has been relatively stable since the parties' agreements. Father's evidence indicated a reduction in net worth of several million dollars. The record, however, does not support the court's conclusion that Father recently sustained such a material and substantial change in his - 36- J.A06013/04 financial picture that he can now be relieved of all of his child support obligations under the parties' agreements. See Samii, supra. To the contrary, the evidence of record demonstrates that Father continues to be a multimillionaire. By his own admission, Father's cash flow (as measured solely by the deposits in his personal checking account) confirms his ability to meet his obligations under the parties' agreements. See Labar, supra. Meanwhile, Father enjoys all of the tax benefits associated with those obligations. Whereas Father's recent decrease in assets on paper might appear dramatic to the ordinary person, no one seriously disputes that Father continues to be a very wealthy person. Hence, we reject the trial court's conclusion that Father should be excused from his child support obligations under the parties' agreements solely because his net worth has sustained a decline in recent years. (See Trial Court Opinion, dated May 30, 2003, at 4 n.1.) Instead, we conclude Father failed to prove the alleged decrease in his assets represents a material change in circumstances that would completely excuse his child support obligations under the parties' agreements. See Samii, supra; 23 Pa.C.S.A. § 3105(b). Accordingly, we reverse the trial court on this matter as well. Lastly, Mother argues she is entitled to reasonable attorney fees and expenses, because Father's defenses with respect to his continuing support obligations under the parties' agreements were not reasonable or made in - 37- J .A06013/04 good faith. To the contrary, Mother contends Father has consistently refused to live up to his contractual commitments even during the years when by his own admission he was doing exceedingly well financially. Mother insists the court denied her claim for counsel fees in part because it found Father was no longer obligated to pay child support under the parties' agreements. Mother maintains the court overlooked Father's history of vexatious and obdurate conduct, which is amply demonstrated of record. Mother concludes the matter should be remanded to the trial court for reconsideration regarding reasonable counsel fees in her favor. We agree. Generally, "parties to litigation are responsible for their own counsel fees ...unless otherwise provided by statutory authority, agreement of the parties or some other recognized exception." Bonds v. Bonds, 689 A.2d 275, 279 (Pa.Super. 1997). Section 3502 of the Divorce Code empowers the court to award counsel fees and costs when a party fails to comply with the terms of a marital settlement agreement. 23 Pa.C.S.A. § 3502(e)(7). "To determine whether to award counsel fees [under this section], the court should consider the parties' incomes, assets, expenses, and future earning capacity." Osia/, supra at 216. The Judicial Code also provides for the award of "reasonable counsel fees as part of taxable costs of the matter" when "the conduct of another party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith." 42 Pa.C.S.A. § 2503(9). Section 2503(9) was drafted "to - 38- J.A06013/04 sanction those who knowingly raise, in bad faith, frivolous claims which have no reasonable possibility of success, for the purpose of harassing, obstructing or delaying the opposing party." In re Estate of Liscio, 638 A.2d 1019, 1022 (Pa.Super. 1994), appeal denied, 539 Pa. 679, 652 A.2d 1324 (1994). An opponent's conduct has been deemed to be "arbitrary" within the meaning of the statute if such conduct is based on random or convenient selection or choice rather than on reason or nature. An opponent also can be deemed to have brought suit "vexatiously" if he filed the suit without sufficient grounds in either law or in fact and if the suit served the sole purpose of causing annoyance. Finally, an opponent can be charged with filing a lawsuit in "bad faith" if he filed the suit for purposes of fraud, dishonesty, or corruption. Thunberg v. Strause, 545 Pa. 607, 615, 682 A.2d 295, 299 (1996) (internal citations omitted). Because Section 2503(9) "reads in the disjunctive, the trial court need[s] only to find that one of the factors was present...." Id. at 619 n.7, 682 at 301 n.7. This Court will affirm a trial court's decision on counsel fees, unless there is a showing of plain error. Diament v. Diament, 816 A.2d 256, 270 (Pa.Super. 2003). Plain error is found where the award is based either on factual findings for which there is no evidentiary support or on legal factors other than those that are relevant to such an award. The rationale behind this limited scope of review is sound. It is the trial court that has the best opportunity to judge the attorney's skills, the effort that was required and actually put forth in the matter at hand, - 39 - J.A06013/04 and the value of that effort at the time and place involved. Gilmore by Gilmore v. Dondero, 582 A.2d 1106, 1108-09 (Pa.Super. 1990). When deciding an award of reasonable counsel fees, the court must evaluate: the amount of work performed; the character of the services rendered; the difficulty of the problems involved; the importance of the litigation; the amount of money or value of the property in question; the degree of responsibility incurred; whether the fund involved was "created" by the attorney; the professional skill and standing of the attorney in his profession; the results he was able to obtain; the ability of the client to pay a reasonable fee for the services rendered; and, very importantly, the amount of money or the value of the property in question. Diament, supra at 270. See also Isralsky v. Isralsky, 824 A.2d 1178, 1192 (Pa.Super. 2003). In the instant case, the trial court denied Mother's request for counsel fees, stating: In this case, [Father] has raised valid and good faith defenses with respect to his continuing obligation to pay child support under the 1992 agreement and the claims for reimbursement for expenses of maintenance for the former marital residence. While we disagree with his contention that he does not owe alimony, we cannot say that this claim was asserted in bad faith. In short, we do not see a basis for the award of counsel fees in this case. (Trial Court Opinion at 8). In light of our disposition on appeal, we conclude the court's analysis is insufficient and as stated, it is not supported by the record. See Diament, supra. -40- J.A06013/04 The parties finally divorced on November 29, 1995. Since then, Father has continued to defy the parties' agreements and repeatedly forced Mother to seek court intervention to enforce the agreements, only to concur at the last minute to consent orders affirming his support obligations under the agreements. Father's most recent strategy involved both an action for child support from Mother and counterclaims to her petition for special relief. Father counterclaimed material and substantial change in circumstances in two respects, custody and finances. Father's position on custody was fundamentally unjustified, in light of the minor change in the custody schedule. See Thunberg, supra. Father also failed to prove he lacked the ability to meet his contractual support obligations. See id. The record makes painfully clear that Father initiated his support action as punishment for Mother's claim of a support shortfall. His subsequent unilateral disregard for the agreements caused Mother to incur additional counsel fees and costs while she defended Father's support action, prosecuted her petition for special relief to enforce the agreements, and defended Father's counterclaims, including this appeal. Mother had no other option but to prepare for and/or defend against Father's actions. Mother would not have incurred her recent counsel fees in this matter, but for Father's one-sided financial decisions and litigation tactics. Therefore, we remand this issue to the trial court for reconsideration of Mother's request for reasonable counsel -41- J.A06013/04 fees and costs, since Father's April 29, 2002 complaint for child support, consistent with the cited legal principles. See Diament, supra. In his cross-appeal, Father initially claims the phrase "primary residence" in the parties' agreements is not conceptually different with respect to child support than it is with respect to house and spousal maintenance payments. Father reasons Mother is not entitled to house and spousal maintenance payments pursuant to the agreements because the former marital property no longer constitutes the ""primary residence" of any of the children. Father submits the court was inconsistent in its analysis and conclusion that the house and spousal maintenance provision of the agreements is controlled by the term "premises" so long as it constitutes Mother's primary residence. Father concludes the court erred in failing to discontinue his house and spousal maintenance obligations along with his child support obligations. We disagree. We have already determined that the former marital property remains the "primary residence" of the children, as contemplated in the parties' agreements. For different reasons, however, we agree with Father that the trial court's analysis was inconsistent. Once we resolved Mother's first four issues on child support in Mother's favor, the court's ultimate conclusion regarding house and spousal maintenance is now consistent. Thus, we decline to give this argument further attention. -42- J.A06013/04 Next, Father disputes that a COLA to the parties' agreements was overlooked in 1995. Father asserts the parties executed their 1995 agreement with the intent to modify and clarify their 1992 agreement. Father contends the support provisions in the 1995 agreement were increased in accordance with the cost of living ("COLA") formula provided in ¶ 18 of the 1992 agreement. Pursuant to ¶ 18, the COLA would be calculated by October 31 of the subsequent odd-numbered years. Father insists the increases included within the 1995 agreement obviated the need for a COLA adjustment immediately following the execution of that agreement, as the 1995 agreement was executed on October 23, 1995. In light of the significant increases provided for in the 1995 agreement itself, Father maintains it is unreasonable to expect these amounts would be subject to recalculation within eight days. Additionally, in 1997, 1999, and 2001, the parties, their accountants, and their attorneys operated under the assumption that the first COLA adjustment would occur in 1997. In all the years following 1995, no one challenged or repudiated the calculations, until Mother's current counsel decided the 1995 adjustment had been overlooked, all subsequent calculations had been miscalculated accordingly, and the shortfall was subject to collection. Father submits the 1995 settlement, all of the subsequent calculations, and his payments throughout the relevant period were all consistent with the shared understanding that there would be no -43- J.A06013/04 additional COLA adjustment in 1995. Father concludes the court erred in finding that a COLA adjustment in 1995 was overlooked and that determination should be reversed, as the subsequent actions of the parties and their counsel prove otherwise. We agree. Instantly, we accept the logic inherent in Father's position that the increases included in the 1995 agreement obviated the need for a COLA readjustment a mere eight days later. The record demonstrates how the 1995 agreement increased a lump-sum payment to Mother and adjusted her alimony from $5,000.00/month to $5,305.00/month, in accordance with the COLA provision in the 1992 agreement. (Id. at $ 3(b); R.R. at 699a). Child support was also increased from $2,000.00/month/child to $2,122.00/month/child. (Id. at $ 3(d); R.R. at 700a). In summary, the 1995 agreement modified the 1992 agreement and also allowed for significant increases in support consistent with the 1992 COLA provision. Moreover, we have allowed Mother to rest on the parties' subsequent performance to enforce Father's support obligations under the parties' agreements. We see no logical reason to deviate from that approach with respect to the COLA adjustments over the years. Therefore, we conclude the record does not support the trial court's determination that a COLA adjustment to the parties' 1995 agreement was overlooked in 1995. See Laudig, supra. Accordingly, we reverse the trial court's decision on the COLA/shortfall issue. -44- J.A06013/04 As an alternative, Father proposes the principles of laches and/or waiver to bar Mother's claim for the miscalculated COLA adjustments, where these errors occurred chiefly as a result of the errors of Mother's experts and legal counsel. Father submits these principles are applicable under the facts and circumstances of this case, where Mother's experts and legal counsel all had access to the COLA provisions in the parties' agreements, and their failure to "discover" the alleged miscalculations arose from their failure of due diligence, not from Father's nonpayment of a clear obligation. Due to our disposition of Father's prior argument, we see no need to review this claim. Nevertheless, we direct Father's attention to Christianson v. Ely, 575 Pa. 647, 838 A.2d 630 (2003) (stating laches or equitable estoppel does not apply to preclude efforts to enforce property settlement agreement; laches does not arise unless "party's rights have been so prejudiced by the delay of another in pursuing a claim that it would be an injustice to permit the assertion of the claim against the party so prejudiced"; courts are extremely cautious in applying laches to child support situations). Finally, Father argues Mother's claim for support arrearages caused by cumulative errors in the COLAs is partially barred by the statute of limitations set forth in 42 Pa.C.S.A. § 5525(8). Father maintains the four- year statute of limitations by which to measure Mother's contract loss should date from November 1, 1995, the date of the initial alleged breach. Father -45- J.A06013/04 concludes the court erred as a matter of law in computing the applicable statute of limitations backward from July 17, 2002, the filing date of the underlying petition for special relief. Due to our previous disposition of the COLA/shortfall issue, we need not directly address Father's final argument pertaining to the relevant statute of limitations. We note only that both the 1992 and the 1995 agreements appear to be contracts under seal and governed by 42 Pa.C.S.A. § 5529 (providing twenty year limitation for actions upon instruments in writing under seal, irrespective of provisions in Section 5525). See Packer Society Hill Travel Agency, Inc. v. Presbyterian University of Pennsylvania Medical Center, 635 A.2d 649, 652 (Pa.Super. 1993) (stating statute of limitations for all written contracts under seal is twenty years). See also Beneficial Consumer Discount v. Dailey, 644 A.2d 789 (Pa.Super. 1994) (stating: "[W]hen a party signs a contract which contains a pre-printed word 'SEAL,' that party has presumptively signed a contract under seal"; absent contrary evidence, signing parties must be found to have in fact adopted seal). Based upon the foregoing, we conclude that neither the current custody arrangement nor Father's alleged changed financial picture constituted cause to excuse him from his child support obligations under the parties' agreements. We also decide that the generic modification/waiver provisions contained in the parties' agreements are ineffective to oust the -46- J.A06013/04 jurisdiction of the court under 23 Pa.C.S.A. § 3105(b) with respect to the child support terms contained in the agreements. We further conclude that the court's error regarding child support predisposed it to deny Mother's request for reasonable counsel fees. Thus, we remand the issue of reasonable fees and costs to the court for reconsideration, given our disposition and the cited legal principles. Finally, we hold there was no COLA adjustment contemplated for the year 1995, over and above that which was provided within the 1995 agreement itself. Accordingly, we affirm in part, reverse in part, and remand for further proceedings with regard to Mother's request for counsel fees and costs. Order affirmed in part, reversed in part; case remanded for further proceedings. Jurisdiction is relinquished. -47- "ULU.